Copyright and Higher Education:
Announcement of Recent Development

December 18, 1997

An Announcement from:
Copyright Management Center
Indiana University

Kenneth D. Crews, Director
Indiana University-Purdue University Indianapolis
530 West New York Street
Indianapolis, Indiana 46202-3225
Voice: 317-274-4400 - Fax: 317-278-3326

President Signs New Criminal Copyright Bill:
Raising The Stakes For Electronic Copyright Responsibilities

President Clinton signed into law on December 17, 1997 the "No Electronic Theft Act." It is a tough new law which severely tightens the circumstances under which an individual may face criminal liability for "willful" copyright infringements. This new law had strong support from the software and entertainment industries, and was generally opposed by academic and scientific organizations.

While this law raises anew the consequences of copyright infringement, it also underscores the need for faculty, librarians, students and others at the university to learn enough about copyright in order to reasonably conclude in good faith that their copying and distribution of materials for teaching, research, multimedia development, and Internet applications do not constitute infringement.

What is the New Law?

The "No Electronic Theft Act" would impose criminal liabilities on any individual who infringes copyright for purposes of "commercial advantage or private financial gain." In a more complicated but perhaps more important provision, the law would also impose criminal liability on any person who reproduces or distributes one or more copies of one or more works during a 180-day period, if such works have "total retail value of more than $1,000." Hence, a faculty member loading materials onto a website or even making photocopies for classroom distribution, if the value of the copies totals more than $1,000, may now actually face the prospect of a criminal violation of copyright.

These infringements, however, must be made "willfully."

No one is fully certain what a "willful infringement" really means. According to reports and hearings from the House of Representatives, willfulness means "something more than the mere reproduction or distribution of copyrighted works." While criminal liability does not depend on proving the "defendant's state of mind," liability may be established if "the defendant acted with reckless disregard of the rights of the copyright holder." Willfulness may be established by circumstantial evidence, and ignorance of the law does not allow someone to escape criminal liability.

The new law is hardly a stellar piece of legislation, and it is singularly unfriendly to experimentation for teaching and research. According to David Post, Associate Professor of Law at Temple University and Co-director of the Cyberspace Law Institute: "This is a dreadful piece of legislation. Congress is . . . reacting in a panic and saying there's so much copyright infringement we need to throw people in jail."^*

What does the New Law Mean for Educators?

What was Congress seeking to accomplish? This new law is in reaction to a case involving a student at the Massachusetts Institute of Technology who escaped criminal liability for large-scale distribution of software on the Internet. Under previous law he could not be held criminally liable if he sought no financial gain. He could, however, still face civil liability to the copyright owners of the software. That civil liability still remains under the new law.

What is the likely practical effect of this new law? While we are not likely to see widespread criminal prosecution against faculty and others at colleges and universities around the country, the mere possibility of such prosecution may be used in a dramatic way to invoke inappropriate restrictions on new technologies. Universities should not overreact.

How May an Educator Pursue Teaching and Avoid Liability?

Faculty and others may employ several means to reduce the likelihood of prosecution. One means is simply to avoid financial gain and to avoid making copies with a total retail value of more than $1,000. Perhaps the best means to avoid liability is to learn about fair use and other public rights of use of copyrighted materials and to reach reasonable and good-faith conclusions that your activities are within those exemptions. If you can conclude with reasonable grounds that you are within fair use or other specific exemptions, not only can you likely demonstrate no "willfulness" to infringe, but you may also demonstrate that your activities are no infringement at all.

What is the Policy at Indiana University?

The approach of learning about fair use and other rights of use is consistent with the new fair-use policy for Indiana University. That policy was adopted by IU Board of Trustees on December 5, 1997, and it calls on each of us in the IU community to know the fundamentals of copyright and fair use and to apply that knowledge in a reasonable, good-faith manner as we pursue our innovative teaching, research, and service. For more information, visit the CMC's website

*Professor Post visited the IUPUI campus in February 1997 as part of the "Cyberspace Law Lecture Series." The quotation originally appeared in an article about the same legislation on the "netlynewsnetwork" and it appears here with the kind approval of Professor Post. Return to text.

Copyright and Higher Education: Announcement of Recent Development